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Two Alternatives to Legal Positivism

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1 Two Alternatives to Legal Positivism
Legal Realism (Oliver Wendell Holmes, Jr., Jerome Frank) Natural Law Theory (Aristotle, Aquinas, Fuller)

2 Legal Realism There really are no legal rules. Appeals to rules are mere rationalizations of the decisions of judges made on extra-legal grounds. The discipline of law consists simply in predicting what judges will do. Law is a branch of sociology: studying patterns of behavior.

3 Natural Law Theory Positive law can be properly understood only by analyzing it as the concrete realization of the abstract principles and functions of natural law. Human beings are by nature political animals. Certain forms of social organization are essential to human existence. These essential forms constitute the natural law.

4 Three Versions Natural law is grounded in human nature, understood biologically. (Aristotle) Natural law is grounded in certain biological facts, but it is binding as law only because it is backed up by God's commands. (Late Scholasticism) The natural law consists of the axioms of practical reason, i.e., self-evident, quasi-logical truths about what is good and right. (Kant, Grisez, Finnis)

5 Weak or Minimal NLT If a so-called "law" fails utterly to realize the principles of natural law (if it fundamentally contradicts natural law), then it is null and void, no law at all. However, natural law has no binding force in and of itself until it is enacted into positive law.

6 Strong or Maximal NLT Positive law has no validity when in conflict with natural law, but the natural law can in some cases be valid and binding in the absence of positive law. For example, the prosecution of Nazi war criminals for "crimes against humanity".

7 Hart's critique, and an NLT response
Hart assumes that, according to NLT, a positive law is a society's attempt to realize natural law. A failed attempt is still an attempt, so a positive law is still law, even if it contradicts natural law. Positive law is not merely the attempt to realize natural law, it is the realization of natural law, in part or in whole.

8 What is it to be a Law? To be an X, a thing must be capable of at least partially fulfilling the function of X. a severed hand is no longer a hand, a corpse is no longer a human body, a meaningless sentence is not really a sentence, an unjust law is not a law.

9 Aquinas’s NLT Human beings are constituted by the pursuit of a certain fixed end, namely, “happiness”. Human beings flourish, or fail to flourish, according to how well they pursue this end. Some humans pursue happiness badly as a result of confusion about what happiness consists in.

10 Reason & Conscience Human beings have a power of pursuing knowledge: reason. In the practical sphere, reason’s role is to achieve clarity about the ultimate end (happiness) and to discover the means (actions) to happiness. Once reason does so, it issues “commands” to the will, whose function is to carry out these commands in action.

11 Moral Law and Happiness
The natural (moral) law consists simply of those commands that a properly functioning, well-informed human being’s reason would command. The moral law enables us to achieve our natural end (happiness). Harmony between enlightened self-interest and justice.

12 Political Authority Human beings are naturally social/political animals. Individual happiness is possible only in a social context of justice & friendship. This “common good” is a precondition of all individual welfare. It is natural that some have authority over others, for the sake of the common good.

13 Positive Law Political authorities can further the common good by forcing everyone to show at least minimal respect for the natural law. This simply reinforces the authority of individual conscience/reason. The state must use prudence, weighing the costs of enforcement and the good of promoting justice.

14 NLT and Anarchy John Austin argued that even weak NLT leads to anarchy. Does NLT encourage more lawlessness than LP? LP denies that legal validity entails a moral obligation to obey the law. Utilitarians recommend deciding whether to follow the law on a case by case basis, with reference to utility.

15 NLT, LP and Lawlessness Aquinas argues that we should obey an unjust “law”, unless doing so creates more harm than the damage we would do to the legal system by undermining public respect for it by defying it. NLT actually gives more moral weight to following putative positive law than LP does.

16 Divine/Eternal Law and Human/Positive law
Kelsen charges that, according, to NLT, positive law is a “useless duplication of natural law”. Three distinctions: Fundamental vs. derived rules Natural law is abstract & generic; positive law is determinate, adapted to circumstances Positive law is enforced by sanctions. Not all of the natural law is, can or should be so enforced.

17 Fundamental & Derived Laws
The natural law consists only of the first principles of practical reason: do what is good, avoid what is evil. The human legislator must reason from these first principles to derived rules, such as: do not murder, do not slander, etc. This derivation is fallible, correctable.

18 Abstract vs. determinate
The natural law, even when derived rules are included, is indeterminate, especially with respect to quantities (speed limits, age qualifications, severity of punishment). The natural law needs to be supplemented with arbitrary conventions in order to solve various coordination problems (e.g. drive on the right/left).

19 Political Enforcement of the Positive Law
The political authorities of a community must enforce a minimal degree of justice & morality, in accordance with the natural law. Such coercion is a blunt instrument. Its use carries with it various costs, inconveniences, and dangers. Thus, it is not prudent to try to enforce every moral rule.

20 Judges and the Enforcement of Unjust Statutes
A judge following NLT can honestly set aside a statute that contradicts natural law, while still acting as a judge, applying the law. A judge following LP cannot do so. He has four options:

21 LP and Unjust Laws LP Judge’s options: Enforce the unjust statute.
Openly disregard and defy the law. Resign or recuse himself from the case. Dishonestly adopt NLT to rationalize the decision to set aside the statute.

22 Austin on Unjust Laws To say that an unjust law is not legally binding is “stark nonsense”. “The Court of Justice will demonstrate the inconclusiveness of my reasoning by hanging me up.” A plea founded on appeal to the laws of God [or natural law] was never heard in a Court. Conclusive?

23 Natural Law and the American Constitution
Ancient, medieval and common-law tradition recognized the propriety of "equitable construction": interpreting a statute so as to make it conform to natural principles of justice, even if this means setting aside its literal meaning. Did this tradition become incorporated into the unwritten constitution of the U.S.?

24 Aristotle on Equity and the Law
...all law is universal but about some things it is not possible to make a universal statement which shall be correct. In those cases, then, if it is necessary to speak universally but not possible to do so correctly, the law takes the usual case, though it is not ignorant of the possibility of error.

25 When the law speaks universally, then, and a case arises on it which is not covered by the universal statement, then it is right, where the legislator fails us and has erred by over-simplicity, to correct the omission -- to say what the legislator himself would have said had he been present, and would have put into his law had he known. And this is the nature of the equitable, a correction of law where it is defective owing to its universality. (NE, Bk. V, sec. 10)

26 Equitable Construction
In the Middle Ages, this was broadened to include cases where the law was deficient by excessive particularity: extensive equitable construction. Hamilton: "Many things within the letter of the statute are not within its equity, and vice versa." (The Law Practice of A. Hamilton, Volume I, p. 357)

27 Early appeals to natural law by Supreme Court.
Chief Justice Chase, in Calder v. Bull (1798) Chief Justice Marshall in Fletcher v. Peck, 6 Cranch 87 (1810)

28 Chief Justice Chase, in Calder v. Bull
The purposes for which men enter into society will determine the nature and terms of the social compact. An Act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact cannot be considered a rightful exercise of legislative authority....

29 It is against all reason and justice for a people to entrust a Legislature with such powers [as ex post facto laws, impairing contracts, making someone a judge in his own case]; and, therefore, it cannot be presumed that they have done it. The genius, the nature, and the Spirit of our State Governments, amount to a prohibition of such acts of legislation....[Legislatures] cannot change innocence into guilt, or punish innocence as a crime." (at 388)

30 Marshall in Fletcher v. Peck
"It may well be doubted whether the nature of society and of government does not prescribe some limits to the legislative power ... the question, whether the act of transferring the property of an individual to the public, to be in the nature of the legislative power, is well worthy of serious reflection.

31 It is the peculiar province of the legislature to prescribe general rules for the government of society; the application of those rules to individuals in society would seem to be the duty of other departments.” Examples of what Lon Fuller called “procedural natural law”.

32 Lon Fuller’s “Inner Morality of the Law”
Fuller argues that certain moral rules, such as the obligation of the legislator and judge to be clear and consistent, and the ban on ex post facto laws, can be derived from the nature of a society governed by rules. Merely “procedural”? What about monstrously unjust laws?

33 Riggs v. Palmer, 115 NY 506 (1889) Elmer Palmer murdered his grandfather, who left Elmer the bulk of his estate in his will. The NY statutes provided no exception in the case of murderous heirs. NY Supreme Court ruled against Palmer, employing equitable construction of the statute.

34 Judges and the NLT NL theorists can recognize the distinction between legislators and judges. Legislators create positive law: judges don’t. This distinction is blurred by legal positivists in “penumbral cases”. It is denied by legal realists. In penumbral cases (where existing law is indeterminate), Hart argues that judges make law, with reference to “social aims” and policy.

35 Judges and Deference NL theorists can embrace a version of Thayer’s rule. All of us have fallible access to the derived rules of the natural law. It is the job of legislators to create positive law that realizes the functions of the natural law. Judges should set aside statutes only when the violation of natural law is unmistakable.

36 Test Cases The Grudge Informer The Nuremberg Trials
The Fugitive Slave Cases

37 The Grudge Informer A hypothetical case, invented by Lon Fuller.
A woman, living in a Nazi-like regime, informs on her husband for anti-government activity. He is arrested and executed. After the war in which the regime is defeated, the woman is charged with murder. Similar cases actually occurred in post-war Germany, in 1949 and 1950.

38 Actual case Woman informed on husband for making disparaging remarks about Hitler, after husband discovered wife with another man. Wife charged after war with attempted murder and unlawful deprivation of liberty. Jury in Wurzburg acquitted, but Federal Supreme Court overturned decision in 1950 (BGHST 3, ), relying on Criminal Code of 1871.

39 Options for Case Acquittal: wife conformed to laws of time.
Dismissal, because the Nazi regime was utterly lawless, a “state of nature”. Guilt, because some laws (against murder) were valid, while others (condemning anti-Hitler comments) were not. Guilt, by applying a frankly ex post facto law. Extra-legal vengeance/

40 Nuremberg Trials Applied the Hague Convention of 1905, Geneva Convention of But these provided for no penalties. In addition, invented the category of “crimes against humanity”. Churchill argued for summary executions, on positivist grounds. Nuremberg - travesty of the rule of law.

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